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Resolution to Bring “Affirmative Consent” to Criminal Courts is Indefinitely Shelved

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The possibility of adding “affirmative consent” to the criminal court system has been shelved indefinitely by the American Bar Association (ABA). “Affirmative consent” is a college campus rule requiring the accused of a sexual criminal act to prove they received consent, which was first passed by the state of California in 2014 to protect students in sexual assault cases.

Although the intention of Resolution 114 was to enhance the protection of people who’ve experienced sexual assault on campus, the American Bar Association —which has the power to bring this resolution to the criminal courts — voted against the resolution this past week, saying it was unconstitutional.

The “affirmative consent” rule is commonly used in college campus sexual assault investigations. But these hearings are disciplinary in nature and could result in the student being expelled or barred from campus. The burden of proof is different in campus hearings than in criminal trials.

There have been many criticisms of the resolution. Many members of the ABA, as well as lawyers and judges who were against the resolution, said they felt it would violate the due process clause of the Fifth and Fourteenth amendments, as well as the presumption of innocence. “This resolution would have assumed guilt if no evidence was brought forth to prove that consent was given,” says Attorney Mark Sherman. “Resolution 114 was too radical. Having to shift the burden of proof to the accuser, so they have to prove affirmative consent, is unconstitutional.”

The ABA made their decision at its annual meeting in 2019. At this meeting, members voted 256 – 165 against adding Resolution 114 to the criminal code for sexual offenses. Before the vote, those in favor of the resolution attempted to change the wording of the resolution to gain more support.

They changed the word “assent” to “consent,” as well as added a new clause that said that Resolution 114 would not change the Constitutionally-guaranteed presumption of innocence. These changes, however, were not enough to win back the support that was needed for the resolution to pass.

Brooklyn College Professor Casey Johnson, who was there to report on ABA’s annual meeting, said that at the beginning of the meeting, two committees within ABA, the Criminal Justice Section and the Executive Committee, both recommended putting the resolution aside for an indefinite amount of time. Johnson also quoted a prosecutor who worried that such a resolution would result in re-trying on the ground of a defendant’s constitutional rights being violated. If the burden of proof appears to fall on the defendant rather than the government, as is written in the constitution, there is more chance for the case to be questioned and provide grounds for it to be retried. This could in turn cause more harm to the plaintiff as sexual assault trials are often a very difficult process.

The Criminal Justice Section committee added they had hastily decided to support the resolution this past Spring and that now their governing body had unanimously agreed to withdraw their support of the resolution.